Training.WinMagic.Com - Terms of Use Agreement

Last Updated: January 23, 2014

THIS IS AN AGREEMENT BETWEEN YOU AND WINMAGIC INC. (INCLUDING ITS AFFILIATES, "WINMAGIC" OR "WE"). PLEASE READ THESE TERMS OF USE, ALL RULES AND POLICIES RELATED TO TRAINING.WINMAGIC.COM (“THE SITE”) (INCLUDING, BUT NOT LIMITED TO, ANY TRAINING VIDEO SPECIFIC RULES OR USAGE PROVISIONS SPECIFIED ON ANY DETAIL PAGE, IN ANY LINK FROM A DETAIL PAGE, OR ON ANY HELP OR OTHER INFORMATIONAL PAGE FOR THE SERVICE), AND THE WINMAGIC PRIVACY POLICY (www.winmagic.com/privacy-policy) (COLLECTIVELY, THE "AGREEMENT"). YOU ACCEPT AND AGREE TO THE TERMS OF THIS AGREEMENT BY SIGNING AND AGREEING TO THE WINMAGIC TRAINING ENROLLMENT FORM OR BY ACCESSING THE DIGITAL CONTENT (AS DEFINED BELOW). IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT ACCESS OR VIEW THE DIGITAL CONTENT (AS DEFINED BELOW).

1. THE SERVICE

The Site service (the "Service") offers digitized training content (which may include video, audio, graphics, text, images and interactive media) on WinMagic products (collectively, "Digital Content") and other services under certain terms and conditions as set forth in this Agreement. The Service allows you to access and view Digital Content by streaming a copy only.

2. COMPATIBLE DEVICES

In order to be able to stream Digital Content from the Service and to view Digital Content on the Service, you will need to use a personal computer, portable media player, or other device that meets the system and compatibility requirements (each such device, a "Compatible Device"). In some cases, whether a device is (or remains) a Compatible Device may depend on software or systems provided or maintained by the device manufacturer or other third parties. As a result, devices that are Compatible Devices at one time may cease to be Compatible Devices in the future.

3. ALL RENTALS AND SALES FINAL.

All purchases of Digital Content are final and non-refundable. We do not accept returns of Digital Content.

4. DIGITAL CONTENT

a. General. The Service may allow you to: (i) purchase Digital Content for viewing over an indefinite period of time, or (ii) access Digital Content as part of your premium support service level agreement for viewing over an indefinite period of time. From time to time, we may add or remove Digital Content from the Service and may change the basis on which Digital Content is available on the Service.

b. Availability. The Service is a dynamic service and the specific Digital Content available and amount of Digital Content available may change over time. We make no guarantee as to the availability of specific Digital Content or the minimum amount of Digital Content available.

c. License to Digital Content. Subject to your payment of any applicable fees through the purchase of the Service or through your premium support service level agreement (including applicable taxes) to purchase or otherwise obtain access to Digital Content, and your compliance with all other terms we specify for Digital Content or the Service, WinMagic grants you a non-exclusive, non-transferable, non-sub-licensable, limited right and license, to access, view, use and display the Digital Content for Internal Use. As used herein, "Internal Use" means a presentation of Digital Content for which no fee or consideration of any kind (other than that which you pay to WinMagic to view the Digital Content) is charged or received, which takes place in your place of business or, if outside your place of business, is limited to a private viewing for you and your invitees. Internal Use specifically excludes any public presentation even if no fee is charged for viewing the Digital Content.

d. Availability of Digital Content. Digital Content will generally continue to be available to you for streaming from the Service, as applicable, but may become unavailable due to potential content provider licensing restrictions and for other reasons, and WinMagic will not be liable to you if Digital Content becomes unavailable for further streaming.

e. Downloading. You may not download and keep a copy of the Digital Content.

f. Streaming. When you stream Digital Content, the resolution and quality of the Digital Content you receive will depend on a number of factors, including the type of Compatible Device on which you are streaming the Digital Content and your bandwidth, which may go up and down over the course of your viewing. While we strive to provide you a high quality viewing experience, we make no guarantee as to the resolution or quality of the Digital Content you will receive when streaming.

g. General Restrictions. You may not transfer, copy or display the Digital Content, except as permitted in this Agreement. In addition, you may not: i. sell, rent, lease, distribute, broadcast, sublicense, transfer, loan or otherwise assign any right to the Digital Content to any third party; ii. remove any proprietary notices or labels on the Digital Content or add any false, misleading or illegal marks to the Digital Content; iii. attempt to disable, bypass, modify, defeat, or otherwise circumvent any digital rights management system used as part of the Service, iv. disrupt or otherwise cause harm to the Service, v. create derivative works based on the Digital Content or any part thereof; or vi. use the Service or Digital Content for any commercial or illegal purpose.

5. INFORMATION COLLECTED

WinMagic may collect data about your use of the Service including information related to the Digital Content you stream and your use of that Digital Content (such whether and when you viewed the Digital Content). Any information we receive is subject to the WinMagic privacy notice located at www.winmagic.com/privacy-policy.

6. ADDITIONAL TERMS

a. Ownership. You acknowledge that the Digital Content, including any related copyright, trademark, patent rights, or other intellectual property rights applicable to or derived from the Digital Content are either (i) owned by WinMagic and remain, without exception, the sole and exclusive property of WinMagic, or (ii) has been licensed to WinMagic. You agree that no right of ownership in the Digital Content is transferred to you under this Agreement or through your use of the Digital Content.

b. Termination. If you violate any of the terms or conditions of this Agreement, your rights under this Agreement will automatically terminate without notice from us, and WinMagic may, in its discretion, immediately revoke your access to the Service without notice to you and without refund of any fees. In such event, WinMagic shall have the right, without notice to you, to automatically discontinue your access to Digital Content from the Service.WinMagic’s rights, including but not limited to all rights of remedy for your breach, shall survive the termination of this Agreement.

c. Trademarks. WinMagic and its logo belong to WinMagic Inc. and all other trademarks on this Site are the property of their respective owners. Except as permitted by applicable law, you are prohibited from using any of the trademarks appearing on this Site without the express written consent from their respective owners.

d. Modification of Service. WinMagic reserves the right to modify, suspend, or discontinue the Service, or any part thereof, at any time and without notice to you, and WinMagic will not be liable to you should it exercise such rights, even if your use of Digital Content is impacted by the change.

e. Amendments. WinMagic reserves the right to make changes to this Agreement at any time. Your continued use of the Service following any such changes will constitute your acceptance of such changes.

f. Governing Law/Disputes. This Agreement is governed by the laws of the Province of Ontario, Canadawithout regard to the conflicts of laws principles thereof.The parties specifically disclaim the U.N. Convention on Contracts for the International Sale of Goods. Any dispute or claim arising from or relating to the Agreement or the Service is subject to the binding arbitration, governing law, disclaimer of warranties and limitation of liability and all other terms in theWinMagic End User License Agreement (www.winmagic.com/support/license-agreement). You agree to those terms by entering into this Agreement or by using the Service.

g. Limitation of Liability. Without limiting the Disclaimer of Warranties and Limitation of Liability in the WinMagic End User License Agreement: (i) in no event shall our or our software licensors' total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) arising out of or related to your use or inability to use the Software exceed the amount of fifty dollars U.S. ($50.00); and (ii) in no event shall our or our Digital Content providers' total liability to you for all damages arising from your use of the Service, the Digital Content, or information, materials or products included on or otherwise made available to you through the Service, exceed the amount you paid to us to purchase or view the Digital Content related to your claim for damages. These limitations will apply to you even if the remedies fail of their essential purpose.

h. Indemnity. You agree to indemnify and hold WinMagic and its officers, licensors and employees harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of: (a) your access to or use of the Digital Content (including any use by your employees, contractors or agents and all uses of your account numbers, user names and passwords, whether or not actually or expressly authorized by you, in connection with the Digital Content); (b) your connection to training.winmagic.com; (c) your violation of this Agreement; (d) your infringement of any third party’s Intellectual Property Rights when using any of the Software made available on the Site; (e) your violation of any rights of any third party; or (f) any dealings between you and any third parties advertising or promoting via the Site.

i. Other. No delay or failure of WinMagic to take action under this Agreement will constitute a waiver by WinMagic, unless expressly waived in writing by WinMagic. This Agreement constitutes the complete agreement of the parties and supersedes any prior written or oral agreement. If any part of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, the remainder of the Agreement shall be interpreted so as to reasonably affect the intentions of the parties. This Agreement is in the English language only; any translations of this Agreement into any other language are for convenience only and the English language version shall always take precedence.Section titles used in this Agreement are purely for convenience and carry with them no legal or contractual effect.